Frequently Asked Questions

Family Law

Does the Family Court now order "shared care" of children?

The Family Law Act says that the court's primary duty is to make a decision which is in the best interests of the child. The usual result is that the child ends up living with one parent and having contact with the other. With a shared care "start point" the court would start from the position that a child should spend equal time with each parent. If that was not in the child's best interest the court would then determine whether there should be some other arrangement.

	Does my interest in a property which I own with my partner as joint tenants form part of my estate when I die?
	No. A person's interest in property owned as a joint tenant with another is a non-estate asset and automatically vests in the survivor on the death of that person.

	Can a de facto spouse commence proceedings under the Inheritance (Family & Dependants Provision) Act 1972?
	Yes. A de facto spouse is expressly recognised as being a member of the category of persons that can commence such proceedings.

Is it correct that it is now possible to split superannuation when people divorce?

Amendments to the Family Law Act which came into effect on 31 December 2002 allow the Family Court to make orders "splitting" superannuation. Separated parties can agree to have orders made splitting their super or to enter into superannuation agreements to split the superannuation. Whichever way the superannuation is "split" the Family Law Act and Regulations are complex. They impose obligations upon trustess of superannuation funds including the trustees of self managed funds. De facto couples however cannot "split" superannuation.

When can I bring an application for defacto property proceedings?

Changes to the Family Court Act 1997 in December 2002 mean that defacto couples may now settle their property and financial matters in the Family Court. Before this defacto couples had to take their matter to the Supreme Court, which involed a different process, took much longer and potentially could cost much more. There are some restrictions however: The parties must have been in a defacto relationship for at least two years; The parties must have separated after 1 December 2002; and The proceedings for property settlement must be brought within two years of separation however in limited circumstances you can apply for financial orders outside this time.

	I was married and am now separated. Is there any time limit within which I must bring property proceedings in the family court?
	Yes. Proceedings must be brought within 12 months of the date of the divorce becoming Absolute. In limited circumstances you can apply for a property order outside this time.

	When can I apply for a divorce?
	Before you can apply for a divorce there must be an irretrievable breakdown of the marriage as evidenced by 12 months separation. The separation does not have to consist of a continuous period of 12 months. In some circumstances separation can occur even though the parties are living under the same roof.

Commercial Law

	Is an oral contract binding or must a contract be in writing?
	It is not necessary for a contract to be in writing to be binding provided the essential terms of the contract are understood between the parties to the agreement. However, it is preferable for an agreement reached to be recorded in writing so that there can be no later dispute between the parties as to its terms.

For workers compensation, superannuation and/or taxation purposes I have to distinguish between my employers and my contractors. How do I tell the difference between the two?

The Full Bench of the Australian Industrial Relations Commission recently outlined the principles to be applied in determining whether a worker is an employee or an independent contractor. There are a number of factors which must be looked at to determine the true relationship between the parties. Primarily the test is a question of whether the worker is the servant of another person in that other person's business or if the worker carries on a trade or business on their own behalf.

	What is business succession planning?
	Business succession planning involves identifying objectives and strategies to deal with management succession and ownership succession which are designed to ensure a smooth transition for the business and ensure its continued profitability. It will often be relevant when developing business succession planning strategies to distinguish between family businesses and non-family businesses.

	Does the transfer of ownership of an asset from a trust to a beneficiary of that trust attract stamp duty?
	Provided it can be clearly established that the asset is owned by the trust and the transferee is a genuine beneficiary as defined in the relevant trust deed, the transaction should attract only nominal stamp duty of $25.

If I am injured at work am I able to claim my workers compensation benefits as well as benefits under my personal accident and sickness policy?

You are not entitled to double benefits. In almost all circumstances the personal accident and sickness insurance will exclude cover where and to the extent that workers compensation benefits are claimable under a workers compensation policy of insurance. In these circumstances both your employer and your personal accident and sickness insurer should be notified of the injuries sustained as soon as it is reasonably practicable.

	What is the main implication of the application of the GST margin scheme on a purchase of land?
	It is the vendor who has the choice whether to apply the margin scheme to a sale of land. If a vendor chooses to apply the margin scheme, the main implication is that a GST-registered buyer will not be entitled to an input tax credit on the GST component of the sale price.

I have a close family member who due to sickness is unable to care for themselves or look after their own affairs. What can I do to help them?

An application may be made to the Guardianship and Administration Board for you or another appropriate person to be appointed as a guardian or administrator of the affairs of the person concerned. A guardian is the legal appointment of a responsible person who can make personal, medical and lifestyle decisions in the best interests of a person who is not capable of making those decisions for themselves. An administration is the legal appointment of a responsible person to make financial and legal decisions on behalf of a person who is not capable of making those decisions for themselves.

	What is a Capital Gains Tax (CGT) Discount?
	An exemption from tax for individuals, trusts and superannuation funds, available for disposals made after 21 September 1999 provided the asset has been held for a period of 12 months.

What is an Enduring Power of Attorney and do I need one?

An Enduring Power of Attorney grants authority for your attorney to execute or do any assurances or instruments as if you yourself had done (subject to any restriction you may place on the power). An Enduring Power of Attorney will continue to have effect in the event that you lose legal capacity, as opposed to a Power of Attorney which will become void at that point. You should have an Enduring Power of Attorney if you require or are likely to require a third party to sign documents on your behalf or make decisions regarding you or your assets in your place, such as if you are travelling overseas or purchasing property and will be unable to sign the documents. If your attorney will be dealing with property on your behalf you must lodge the Enduring Power of Attorney with the Department of Land Information.

	Who is entitled to a copy of my will?
	While you are alive it is your exclusive property. When you die, only the executor and the beneficiaries are entitled to a copy of it. But once the will is probated it becomes a public document and anyone may pay the Supreme Court for a copy of it.

What is Legal Professional Privilege?

Legal Professional Privilege is an important common law immunity that exempts privileged communications from being disclosed, for example, for use in court proceedings or during the course of investigations or prosecutions that are conducted by regulatory authorities such as the Australian Securities & Investments Commission. Legal Professional Privilege attaches to: confidential communications passing between a client and the client's legal advisor, for the dominant purpose of obtaining or giving legal advice. This is known as legal privilege; confidential communications passing between a client, the client's legal advisor and third parties, for the dominant purpose of use in or in relation to litigation, which is either pending or in contemplation. This is known as litigation privilege.

What is a secured creditor?

Secured creditors are usually banks or other financial lending institutions although they can be smaller companies or individuals that give financial assistance to a company and have taken a security usually in the form of a deed of charge or debenture over the fixed and floating assets of the company. This security usually gives very extensive powers that allow the secured creditor to take control of the whole of the company or some of its more important assets with a view to selling them, so that the debt owed to the secured creditor can be forcibly repaid.

What is a Patent and what does it protect?

A patent is a monopoly granted by the government for an invention that works or functions differently from other inventions. It is necessary for the invention to be new and invented compared to what has been done before. The venture or invention must have novel features which contribute to its working. The patent will protect the intellectual property you created in making the invention. The patent will also enable you to prevent others from making your invention in Australia or from importing your invention into Australia.

What is an application for probate?

Generally speaking, this an application made by the Executor of a deceased estate to the Supreme Court of Western Australia. The executor must satisfy the Supreme Court that the Will is valid. This means that there are no later Wills, that when signing the Will the deceased was at least 18 years of age, was of sound mind and not subject to undue influence, and that the Will was signed in the manner required by law. The application is made with an Affidavit which, together with the original Will, is lodged with the Court. This is often called Proving the Will. If the application is successful (and most are) the Court gives the Executor a Grant of Probate which entitles the Executor to proceed to carry out the terms of the Will.

What is the difference between assets owned as Joint Tenants or as Tenants in Common?

A common example of joint tenancy is a family home where the husband and wife are both named in the title deed as joint tenants. If one of them dies, the property will pass to the surviving owner regardless of what the deceaseds Will says. This is regarded as a non estate asset. On the other hand, an asset can be held by two people as tenants in common. This is where each persons share in the asset is distinguishable and quantifiable. This is often the case with siblings or business partners. If one owner dies, their share will pass according to their Will and not to the surviving co-owner/s.

Commercial Litigation and Trade Practices

	What is a solvent company?
	While insolvency is not deined in the Corporations Act, a solvent company is described in the Act as a company that is able to pay its debts as and when they become due and payable. The Act states that a company that is not solvent is insolvent.

Can I use images I have downloaded from the internet in my own documents?

It depends on whether the image is considered to be in the "Public Domain" or not and to what use you put the images. Public Domain material is that which is so widely used or known that the original copyright in it is no longer valid and can be used in your documents. If you download copyrighted images, or images which are not in the Public Domain, then you may only use them for your own personal use, research or study.